The centre has asked the Supreme Court to reconsider its choice of Justice KM Joseph
A crucial meeting of the Supreme Court collegium, or a group of five most-senior judges, is underway this evening to discuss the centre rejecting its recommendation to elevate Justice KM Joseph to the top court. The government's decision was seen to set up a rare face-off with the judiciary and there have been concerns that it had already sent a message that there will be consequences if judges rule against the government. If the judges decide to send Justice Joseph's name back, the government can only delay, not stop his appointment.
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The collegium is likely to reiterate its recommendation to elevate Justice Joseph. Former Chief Justice RM Lodha said it would be premature to say what the collegium would decide but hinted that there was no reason for the collegium to change its mind.
"Obviously all the factors which were taken into consideration while sending his (Justice Joseph's) name I think remain, they exist. They will be examined in light of the government's observations. But none of these grounds (cited by the government) really matter much," the former Chief Justice told reporters.
The government last month went by the collegium's recommendation to appoint arbitration lawyer as a Supreme Court judge but asked the collegium to reconsider its choice of Justice Joseph, the Uttarakhand High Court Chief Justice. Justice Indu Malhotra, the first woman lawyer to be directly elevated as the top court's judge, took oath last week.
In a letter sent over three months after the collegium's 10 January recommendation, the government said there were other judges senior to Justice Joseph and the Supreme Court already has one judge from Kerala.
Justice Kurian Joseph, a member of the collegium, had last month written to the Chief Justice of India Dipak Misra called the three-month gap an attempt to threaten the "very life and existence" of the Supreme Court and asked him to take steps else "history will not pardon us". A similar letter was also written by the court's second most-senior judge Justice Jasti Chelameswar last month.
Former Chief Justice of India TS Thakur, one of the many retired judges to have questioned the centre's decision, worried that it had already sent a wrong message and have a "serious impact on the judiciary". "This is not just about Justice KM Joseph but the judiciary," he told NDTV.
The Congress has alleged Justice Joseph was being punished for his decision to cancel central rule in Uttarakhand in 2016. It is an assessment shared by many in the legal community and there have been suggestions that the court should order the centre to clear the appointment.
Chief Justice Dipak Misra had declined a plea from over 100 lawyers to hold Justice Indu Malhotra's appointment till a decision is taken on Justice Joseph's elevation, ruling that legally there was "nothing wrong" in the government sending back one of the two names.
It would be "unthinkable, unimaginable and inconceivable" to delay Justice Indu Malhotra's elevation, the top court had ruled. But the court did not reject the plea that Justice Joseph's seniority vis-a-vis Justice Malhotra should be protected.
Justice Malhotra's appointment last week makes her senior to any other judge who may be appointed to the bench. But the collegium recommendation in January, which found Justice Joseph "more deserving and suitable in all respects" than other senior high court judges, had specifically recommended that Justice Joseph be appointed first.
